Scorecard for Today's D.C. Gun Law Showdown

Grammar, history, intent, the District's unique role in the Constitution, and crime in contemporary society could all play major parts in today's historic Supreme Court session on Washington's handgun ban. You may need a scorecard to keep tabs on the 75 minutes of argument.

(Good news is the court intends to release audio of this morning's session after it ends, sometime before noon.)

First question: grammar. If the argument gets hung up on the grammar question that has divided gun rights supporters and opponents for many decades--what is the true purpose and meaning of the so-called preamble to the Second Amendment, "A well regulated Militia, being necessary to the security of a free State"?--then there's a good bet the ultimate decision will focus on whether the right to keep and bear arms is an individual or collective right. That debate has raged since well before the 1939 Supreme Court decision in which the justices said that the amendment is really about how to assure that armed civilian militias be available to defend the people.

Interestingly, the challengers who got the D.C. gun ban overturned in the federal appeals court concede that the preamble "informs the nature of the right to bear arms," calling it a "declaration of purpose." That's not nearly the statement by the D.C. government in its brief that the "obvious purpose" of the amendment is to protect state militias, but it does indicate an agreement by both sides that the right to bear arms may be something short of a purely individual right to have a gun for whatever purpose they might wish. And the District brief grants that the militia as conceived in the Constitution is indeed "the people." So while the two camps are hardly ready to join hands around the campfire and sing Kumbaya, the justices have some space to push the two sides toward each other.

Much may turn on whether the justices get into the dueling ideas about how to describe the Amendment's roots in early American history. Both sides emphasize that the Amendment's meaning lies in how it came to be, but they choose different periods to make their case. The pro-gun advocates lean on the colonial period, offering a stirring and profoundly radical story about how the aggrieved American colonists created "extralegal" militias and fought hard against the British authorities' efforts to suppress these voluntary, informal bunches of armed men. These militias were "critical" to the success of the Revolution, says the brief filed by the original plaintiffs in the case. Given that background, they say, it's essential that Americans today have the right to take up arms once more should their government fall into tyrannical ways.

Oh no, cries the D.C. government--the Second Amendment cannot be an invitation to treason, which is, after all, the highest crime imaginable under the Constitution. Rather, the city argues that the Amendment refers to the post-revolutionary militias, when states sought to establish their authority and put down private rebellions, with the help of citizens. In a strange way, the D.C. brief is the more conservative document in this case: While the pro-gun side basically says that Americans must be armed to prepare for the next time they have to overthrow their government, the District's lawyers are aghast at this notion. They write that the right to own guns historically "did not permit individuals to decide for themselves when to resist tyranny."

Getting into this history would make for a tremendously fun session today, a chance for the justices to flex their academic muscles and demonstrate just how dedicated they really are to the essentially radical and rebellious roots of this nation.

More likely, however, much of the session will be devoted to debating legal questions of intent and the government's power to regulate arms. While the pro-gun side argues that the ability of government to set limits on arms applies primarily to weapons that are not in "common use" (machine guns, who knows, even nuclear weapons), the city argues that it has the right to regulate against handguns because they are a particularly dangerous weapon in an urban environment. The pro-gun argument falls flat, the city says, because "virtually any weapon falling into common use is immune from proscription," no matter how powerful or dangerous that weapon might be.

If, as many court observers believe, these justices are likely to declare an individual right to bear arms, they would also likely affirm the right of the District and other governments to regulate weapons. But how far can such regulation go if there is a guaranteed right to private ownership of arms?

The District's most novel, and to some, bizarre, argument is its claim that the Second Amendment uniquely doesn't apply to Washington because we're not a state. If the justices spend much time on this, I'll eat my copy of the Second Amendment. The city's reasoning here is that where the Constitution limits federal interference with states' authority, the District is free to do as it wishes because nyah-nyah, we're not a state. The city's lawyers are really stretching on this one. The pro-gun side scoffs at this argument, noting that since the District was created out of two states, the rights and guarantees in the Constitution apply to D.C. residents exactly as if they were still living in Virginia and Maryland.

Will the justices stay on a theoretical level or dive into the contemporary factors that led the District to pass the handgun ban in 1976? The D.C. Council said then that handguns "have no legitimate use in the purely urban environment of the District of Columbia." And the original plaintiffs in this case argue that the city's crime-ridden streets demand that they be permitted to defend themselves against attack.

Tom Palmer, one of the six D.C. residents who filed the original suit, believes a handgun saved his life, not here, but in California more than two decades ago, where he was surrounded by a bunch of young men shouting anti-gay epithets and threatening to kill him. Only by displaying his gun did Palmer manage to escape unharmed, he says. "It saved my life," he says. "There's no question in my mind."

Years later, living in the District, an intruder burst into Palmer's apartment and promptly scurried away when he saw that Palmer was at home. "I would have felt much more comfortable if I had a functional firearm in my home," he says.

Palmer is no longer a named party in the suit, which has been narrowed to just one of the original six, but his argument stands as the pro-gun side's response to the District's claim that handguns "are responsible for a disproportionately high number of violent crimes, accidents and suicides," especially in an "exclusively urban jurisdiction" like Washington.

If the city's argument is that it's just too dangerous to allow "concealable and lethal handguns," then the pro-gun side counters that "the scourges of crime and terrorism" demonstrate that the constitutional guarantee of gun rights is still relevant.

Watch for the discussion to focus on the limits of permissible regulation. The government must weigh the preservation of liberty against the preservation of human life, say those who challenge the gun ban. They grant that some regulation of guns is fine, even necessary, but their examples run to banning felons from buying guns or requiring background checks of purchasers.

The city tries to minimize the reach of its ban, saying that it merely "limits access to one particularly dangerous gun." But of course the District also places strict limits on rifles and shotguns, so its claim to be concerned just about the handgun is less than fully straightforward.

Should be a fascinating morning. Come ahead with your observations as the show unfolds.

You can hear my discussion with Tom Palmer, one of the original six plaintiffs in the gun case, and David Henigan, legal director of the Brady Center to Prevent Gun Violence, at the Raw Fisher Radio archive.

And tune in at noon today--or anytime over the course of the week--to hear this week's edition of the show, featuring some of the region's top food bloggers chatting about the latest trends and ideas in restaurants.

Comments

When 'the people" are granted a right, for whatever reason, the "right" remains until rescinded, even if the original reason may no longer apply. The first clause of the 2nd amendment is explanatory, not regulatory.

Posted by: Stick | March 18, 2008 7:49 AM

Anyone who would turn to Marc Fisher for legal analysis is even dumber than he is.

Posted by: AlvinT | March 18, 2008 9:13 AM

The govt Fed, state or local should not be allowed to regulate what firearms or explosives I possess for home defense. I have claymore mines, numeorus fully auto machine guns etc to defend my property. Yes they are illegal but they shouldnt be. I also have light anti tank weapons and SAMs. Hopefully the correct ruling on this case by the Supremes will make me a a lwa abiding American citizen. I am Marc's worse nightmare! A red neck Merican with more firepower than the NG! Take that you Birkenstock wearing leg shaving leftist scumbag!

Posted by: Anonymous | March 18, 2008 9:17 AM

Heck, if the 2nd Amendment doesn't apply to DC, then none of the others ought to as well. Guess that means DC police doesn't have to ask permission to go door to door searching for illegal guns, drugs, and prostitution rings. Now all that is required is for DC to get enough law enforcement personnel to complete the task. Have fun paying for that operation people of DC!

Posted by: bohdi12 | March 18, 2008 10:01 AM

The Founders never envisioned that their document would have granted people the right to own mines, and automatic weapons (whose only demonstrable purpose is killing).

Sure, every American should be able to have a gun in the house - a Revolutionary War-era musket. There's NO reason why automatic )or even semi-auto) should be allowed outside of law enforcement or gun ranges.

Posted by: Mr. Sanity | March 18, 2008 10:38 AM

i don't see why the "we're not a state" arguement is so bizarre ... it's the arguement used to deny the district access to representation in congress.

if we can tax DC without representation because the constitution specifically says "states" participate in congress, then why do they have to abide by the other rules specifically laid out for "states"?

clearly the framers never intended for there to be a non-state "district", but now that we have it, i think we should apply the entire constitution evenly (all "state" clauses or none), not just when we feel like it.

Posted by: ffx | March 18, 2008 11:20 AM

yeah, ffx, but, as noted by bodhi12, above, if you're willing to say that the 2nd amendment doesn't apply to DC residents because they don't live in a state, then you have to be willing to accept that none of the other amendments in the Bill of Rights apply to DC residents, which is absurd. The problem with the argument from a legal standpoint is that it is neither logically consistent nor cohesive.

Posted by: DUH, ESQ. | March 18, 2008 11:33 AM

FFX wrote:

clearly the framers never intended for there to be a non-state "district", but now that we have it, i think we should apply the entire constitution evenly (all "state" clauses or none), not just when we feel like it.

My Response:

Section 8 of Article 1 of the Constitution provides:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

So, yes, the founders did intend for there to be a non-state district. In fact, they expressly intended that there be a non-state district.

Posted by: I Can Read | March 18, 2008 11:46 AM

I love how across the country people are rallying behind this case to defend the 2nd amendment rights "for our own good." Fine. I also think a vote in our ultimate governing body is "for our own good." Funny how their compassion for our rights evaporates as soon as it no longer suits their purpose.

This boils down to the district's right to self govern. If we choose to follow our collective stupidity, at our own peril, so be it. That's our right. We don't tell you how to run your city. Do us all a favor - stay home and shut up.

The gun law was in place before Palmer et al. moved here. To parrot the anti-DC-vote people: "If you don't like it, MOVE!!"

Posted by: Candyman | March 18, 2008 1:25 PM

Re: I Can Read

Sure, but can you analyze? Intent is important. The text of the article indicates that the "district" was intended to be a federal-only territory. The fact that it has become a fully diversified, functioning city with half a million residents should by all measures factor into the interpretation of this article.

Consider the passage "and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings", that would seem to apply to the primacy of federal control in all federally-owned land. So then, should we consider Section 8, Article 1 to apply only to those parts of the District of Columbia that remain federally-owned land, allowing state rights over privately owned land?

Posted by: Bloomingdale, DC | March 18, 2008 1:29 PM

I want to start by saying I am against banning guns - I personally believe that law-abiding citizens should not be punished for criminal activities perpetrated by others. I do believe they should be harder to get than a driver's license, but not banned outright.

That being said - get the hell out of our laws, Fed! DC voted and the majority of people decided they didn't want handguns in the city. That is the true definition of democracy - majority rules.

If handguns had been banned in New York State we wouldn't even be here. Only because DC is considered less than equal to everywhere else in the US is the Fed allowed to step in.

As to using the "we aren't a state" argument I think it is genius. That is the same argument the feds use to keep us from having full voting rights in congress. You can't have it both ways.

Posted by: DCer | March 18, 2008 1:45 PM

to "duh" and "i can read":

OK, there was original intent for a district. that wasn't really my point. you're right.

And yes, I think it's absurd that the constitution would not apply to DC. It absolutely should. The whole thing.

Which is why they should have representation in congress as well. You can't make the "not a state" arguement sometimes and not others. So until they get a congressperson and a couple senators, why shouldn't they call out the technicality?

George Will wrote an excellent editorial in this paper about why DC cannot have congressional representation awhile back, and I thought he made some good technical points about how DC was "not a state" and therefor had no legal right to representation. I'd like to see how he feels about the 2nd ammendment in this case.

Sorry if my point wasn't clear - my only intention was to point out the hypocrisy vis a vis teh arguement against congressional representation which so many people seem to agree with.

Posted by: ffx | March 18, 2008 1:50 PM

one more clarification, since things seem to be read out of context:

i didn't *agree* with George Will's editorial. i just thought it was well written and very logical. the problem is, if you continue to follow his logic, you end up nullifying half the constituion.

Posted by: ffx | March 18, 2008 1:55 PM

The right of public assembly is not unconditional -- you still need parade and demonstration permits.

The right of speech is not unrestricted as to time, place, volume, profanity, etc. Garage sale flyers on lampposts will get you busted in some places.

Get it? Don't get your knickers in a twist (or run out to Virginia and buy a 357-Magnum) if the Court decides to get up in DC's bidness. There will be regulations, just more specific ones than those we have now.

Posted by: Mike Licht | March 18, 2008 7:03 PM

I could not help but notice the tragic irony in a story that ran on the local DC news last night.

On the very day that Chief Lanier and Mayor Fenty gave pathetic speeches supporting their Stalinistic view that handguns are just too dangerous for ordinary citizens, an off-duty police officer in SE shot a teenager after the teenager tried to rob the officer with a knife.

The irony is that the same Police that support stripping ordinary citizens of their 2nd Amendment rights will fight to the death that the off-duty police officer had a right to defend himself.

Too bad the district's residents do not have the same rights (at least not yet)...

Posted by: Aaron Burr | March 19, 2008 10:03 AM

"When 'the people" are granted a right, for whatever reason, the "right" remains until rescinded, even if the original reason may no longer apply. The first clause of the 2nd amendment is explanatory, not regulatory"

The above is the first post in the comments on this topic. It is also wrong in that the GOVERNMENT "grants rights" to the people. The first ten amendments to the US Constitution, known as the Bill of Rights, are what the founders considered to be "God Given" natural rights. Also known as inalienable rights.

How some people actually believe that "the people" derive their rights from the government show just how stupid this country has become. 9th grade civics classes should have covered at least the fact that it is the government that derives it's power from the people.

Thomas Jefferson in the Fewderalist Papers was very much against a "list" of rights because he was certain (and very correct) that the government would see fit to limit the Constiutional "rights" to just those that are listed. Outside the Bill of Rights, the Constitution does one thing and one thing only, it sets up the parameters, and limits, of the Federal Governmemt. All other rights were to "the people" or to the state.

The Second amendment guarntees the First amendment. Period. None of the amendments stand on their own, nor do they grant rights to the Federal Government or the State.

Life and liberty are not possible without the ability of self defense: protection of home, family, property. So, what are the means of self protection? Police? Lawyer? Justice system? Run away? Firearm?

A government that doesn't trust it's people, the people who created it, and give it authority, should fail. And those that give more authority to the government than it has a right to don't deserve the liberty that was paid for with the blood of those that fought to keep this country independant and free.

Posted by: Nevis | March 20, 2008 2:18 PM

Aaron Burr: I guess you missed the PG story about the kid who shot his brother while they were playing with their father's loaded gun. Sadly, gunshot fatalities within the household - accidents, suicides, and spousal homicides -- account for most of the 39,000 gunshot deaths in the US each year.

"The mother said she worked as an armed security officer, Gilbert said, adding that she was wearing a uniform and had a handgun."

So it looks like it was the MOTHER'S gun, the one she uses as a licensed security guard, just as is currently allowed in D.C.

Posted by: K-Romulus | April 18, 2008 2:53 PM

My bad, the Post had a follow-up:
"The handgun belonged to the boys' father, who is a special police officer in the District. The gun was issued for his job, said Officer Henry Tippett, a police spokesman."

So, the accident could have taken place in DC, as DC law allows "special police" to keep their work handguns at home. Nice try at demonizing regular (non-governmental) gun owners, though.